Public servant claimed 500 physio visits for back and sues Comcare for more

Noel Towell

A former Canberra public servant has had more than 500 taxpayer-funded physiotherapy sessions over seven years – at a cost of more than $60,000 – is taking legal action to keep the treatment going.

But Darryl Durham's lawyers say the Commonwealth could be left paying a $1 million compensation bill because of the decision to deny the $75-a-week treatment for his bad back.

Federal workplace insurer Comcare, which stopped paying for the physio late last year, says taxpayers should not have to be liable indefinitely for costly treatment that is not making the former public servant any better.

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Barristers for the two sides battled it out for two days in the Administrative Appeals Tribunal in Canberra this week.

Mr Durham's lawyers argued that without his weekly taxpayer-funded physio sessions, the former public servant would not be able to work at his new job as a sports consultant and would claim worker's compo benefits until he turned 65, at a potential cost of $1 million.

The former Australian Sports Commission public servant has a serious lower-back disc injury incurred on the job in 2006 and was paid a permanent impairment lump sum by Comcare several years ago.

But the insurer continued to fund physio sessions, which were twice-weekly for some time, racking up bills of more than $60,000 and with no end in sight until Comcare cut off the treatment in December last year.

Comcare, which has expert medical opinion backing its view that Mr Durham does not need the physio to keep working, has said it is not reasonable to ask taxpayers to keep paying for the treatment. The insurer said it would not publicly comment on the case while it is before the tribunal.

But Geoff Wilson of Maurice Blackburn lawyers said Mr Durham's doctors want the treatment to continue.

"Our argument on behalf of Mr Durham, supported by his treating GP, physiotherapist and independent specialist occupational physician, is that physiotherapy treatment allows him to maintain his current condition such that he is able to continue working," Mr Wilson said.

"We are not saying the physiotherapy will cure Mr Durham. Such treatment does, however, produce a significant benefit to the public purse as Mr Durham is able to function as an engaged and productive member of the Australian tax-paying workforce."

The Canberra-based lawyer said it would cost Comcare $75 a week to keep Mr Durham in the workforce and off worker's compensation payments.

"This is an example of Comcare exhibiting poor commercial judgment," he said. "In ceasing a $75-per-session payment, Comcare unnecessarily risks turning a productive, employed person into someone who is unemployed and a potentially much greater burden on the public purse."